Are Cypriot family courts in for a rocky ride?

Anna Demetriou and Christina Avgousti

Whilst for some, the possibility of separating from their partner cannot begin to be fathomed, for others permanency in a relationship may be a source of unease. It’s only when we remove our rose-tinted glasses, however, that we can properly comprehend the prospect of divorce.

This article will not examine the anthropological perspective concerning the annulment of marital ties. Instead, it will explore the tools which can be used to facilitate marital life and its ups and downs.

As international relationships and marriages become more ubiquitous, legal disputes concerning the applicable jurisdiction of prenups are brought to the fore. There are currently no universal rules on premarital agreements within the EU. Whilst each individual member state has its own rules vis-à-vis family law matters, the role of the EU is to ensure that decisions made in one country can be implemented in another.

Cyprus family law is unique in the sense that it encapsulates an amalgamation of its occupiers’ legal systems. The island’s turbulent history has birthed a family law terrain based on Greek family law, with a hint of Ottoman empire laws, a generous dash of the moral barriers of Greek Orthodox ecclesiastical law followed by a sprinkle of English common law. This can be witnessed in article 111 of the Cypriot Constitution, as amended.

Validity of prenups and postnups in Cyprus

Prenups under Cyprus law are an anathema. Cypriot law has been categorical in its refusal to recognise prenups and postnups. Specifically, they are considered to undermine public policy and the institution of marriage and are therefore not considered valid. Following the enactment of the amending Law 22(I)/1995, Article 26A of the Law of Contracts, CAP.149 reads “Every agreement in restraint of the marriage of any person is void.”

There is also no specific legal framework regarding postnups. However, under Law 232 of 1991, a property settlement agreement can be signed only if a marriage has been dissolved, annulled or the couple has separated. A property settlement agreement, albeit not a postnuptial per se, is recognised under Cyprus law only if the separation of the couple has actually occurred.

From ancient contracts to modern agreements

While prenups may be the trend, it should be noted that one of the earliest known prenups is over 2000 years old. Moreover, the ancient Hebrew marriage contract, “ketubah,” still in practice, is not a far cry from what used to be the Cypriot dowry agreement “prikosimphono” which was considered compulsory under customary law and done with the blessings of the Greek Orthodox Church. It can be argued that the reasoning behind this is that the dowry agreement would safeguard the rights of the spouses. Similarly, prenups are entered into to provide clarity as to the marital rights of the spouses, such as the division of marital property, the right to spousal support etc. It is generally accepted that millennials are not only using prenuptial agreements to settle marital property issues, but also to tackle social issues, such as cheating.

A case for prenuptial and postnuptial agreements today

A prenup serves as a clearsighted assessment of one’s choice to marry, while simultaneously evaluating the risks and implications of marriage, alongside all the goods it confers. With a prenup or postnup, spouses can enter a marriage knowing the legal repercussions and aftermath of a potential dissolution of their marriage.

Notably, instances do exist of couples entering a postnup subsequent to one of the partners being involved in an extramarital affair, but with both spouses choosing to remain together temporarily. So why then are Cypriot legislators acting prudish? Further, are we certain that these forms of marital agreements would not aid in keeping disputes out of court?

Whilst there is little case law on the enforceability of prenups and postnups in Cyprus, it has been made apparent that the courts are overtly reluctant to acknowledge their existence. Understandably, such agreements are not a panacea. However, due to growing demand it could be argued that having a clear legal framework in the EU and Cyprus to guide the procedural fairness is of vital importance.

Anna Demetriou & Christina Avgousti from Elias Neocleous & Co LLC